Class Certification Denied in Baby Seat Case

A California federal court declined to certify a class of consumers accusing a manufacturer of designing a baby seat that is allegedly prone to having unhealthy mold. See Butler v. Mattel Inc. et al., No. 2:13-cv-00306 (C.D. Calif.).

Plaintiffs move to certify a nationwide class of individuals who “acquired” a Fisher-Price Rock ‘N Play Sleeper (Sleeper) prior to January 8, 2013.  The court's analysis focused on predominance. The predominance inquiry under Rule 23(b) tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997) (citation omitted). The thrust of plaintiffs’ case was that the Sleeper is defective because it has a “dangerous propensity” to grow mold. From that proposition, plaintiffs raised several claims for product defects and misrepresentations about the quality of the Sleeper.

The court concluded that plaintiffs’ bid to have the case handled on a class basis failed because they could not establish that any actual defect was common to the entire class. There was ample evidence in the record that the vast majority of the proposed class did not experience mold growth on the Sleeper to a degree that they saw fit to complain to defendant or to the Consumer Product Safety Commission.

The Sleeper was only alleged to have a “propensity” for mold growth – which the court saw as an issue separate and apart from the issue of an actual reaction by the consumer to whatever mold may be present. There was no evidence that every Sleeper developed notable levels of mold and ample evidence that most of them did not. Based on the record before the court, it appeared that the vast majority of the proposed class, for whatever reason, was in no way affected by the alleged increased propensity of the Sleeper to grow mold.  It was not clear whether any child suffered a reaction or injury. There was merely a limited “recall” by which defendants provided additional care instructions for cleaning any mold that may occur.

This meant that many of the proposed class members likely do not have standing to raise the class claims, and whether or not a particular class member has standing was an individual issue that was not amenable to class treatment. Only class members who actually experienced mold or who could show that their particular circumstances made it likely that they would actually experience a mold issue would likely have standing, said the court.

The dispositive issue of standing thus was not common to all class members and must be
addressed on an individual basis. The overarching importance of this question predominated over any common questions that may exist as it was impossible to award class wide relief without consideration of standing.

Class certification denied.

FDA Seeks Comments on DTC Study

The Food and Drug Administration is seeking public comment on its investigation of the impact of communicating risks in direct-to-consumer prescription drug television advertisements.  Readers know of the importance of the DTC context in drug litigation.

The notice announcing the comment period notes that prescription drug advertising regulations (21 CFR 202.1) require that broadcast (TV or radio) advertisements present the product's major risks in either audio or audio and visual parts of the advertisement; this is often called the "major statement." There is concern that as currently implemented in DTC ads, the major statement is often too long, which may result in reduced consumer comprehension, minimization of important risk information and, potentially, therapeutic noncompliance due to fear of side effects. Not all agree; one possible resolution is to limit the risks in the major statement to those that are serious and actionable, and include a disclosure to alert consumers that there are other product risks not included in the ad. For example, the disclosure could be, "This is not a full list of risks and side effects. Talk to your doctor and read the patient labeling for [drug name] before starting it."

The Office of Prescription Drug Promotion  plans to investigate the effectiveness of this "limited risks plus disclosure" strategy through empirical research, with the hypothesis that, relative to inclusion of the full major statement, providing limited risk information along with the disclosure about additional risks will promote improved consumer perception and understanding of serious and actionable drug risks. 

 

The FDA invites comments by 4/21 on: 

• whether the proposed collection of information is necessary for the proper performance of the FDA's functions;
•the validity of the methodology and assumptions used;
• ways to enhance the quality, utility and clarity of the information to be collected.

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Federal Court Rejects Copycat Class Action

 A California federal court declined to certify a putative class of consumers in a suit accusing defendant of marketing defective dryers. See  Martin Murray v. Sears Roebuck and Co. et al., No. 4:09-cv-05744 (N.D. Cal.).

In 2009, Murray filed a putative class action on behalf of all California consumers who purchased the same Kenmore-brand dryer that he allegedly did. In his complaint, he alleged that Sears and Electrolux, the dryer’s manufacturer, had marketed the dryer to consumers by promoting its “stainless steel” drum without disclosing that the drum’s front -- the portion of the drum that allegedly rusted -- was actually made of a mild steel, which is allegedly more susceptible to corrosion and chipping. Based on this alleged omission, Murray asserted claims against defendants for unjust enrichment, breach of contract, and violations of California’s Consumer Legal Remedies Act (CLRA) and Unfair Competition Law (UCL). Defendants removed the action to federal court under the Class Action Fairness Act.

The original complaint was a "copycat" of allegations in a class action in the 7th Circuit, the infamous Thorogood matter. After amendment, the court concluded that the new allegations were sufficiently different from those in Thorogood, such that plaintiff was not collaterally estopped from
asserting his claims on a class-wide basis.

Plaintiffs sought certification under Rule 23 subsections (b)(2) and (b)(3). Rule 23(b)(2) applies where the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.  Rule 23(b)(3) permits certification where common questions of
law and fact predominate over any questions affecting only individual members, and class resolution is superior to other available methods for the fair and efficient adjudication of the
controversy. In deciding the class issue, the court must conduct a rigorous analysis, which may require it to probe behind the pleadings before coming to rest on the certification question. Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).  Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. "That cannot be helped.” Dukes, 131 S. Ct. at  2551.

The court's analysis focused on the commonality and typicality requirements of Rule 23(a). The court concluded that Murray failed to present any evidence that defendants represented on a class-wide basis that the dryer’s drum front was made of stainless steel (rather than mild steel) and that this feature would prevent its user’s clothes from developing rust stains or tears. None of the sales managers testified that Sears marketed the drums as preventing rust stains or tearing. One
product manager testified that she believed the stainless steel was marketed as an aesthetic feature. A third Sears employee simply referred Murray to Sears’s marketing team when asked about the company’s advertising practices. None of this testimony supported Murray’s claim that California consumers, as a class, were likely to be confused by Sears’s marketing claims.

While some of Sears’s promotional materials stated that the Kenmore-brand dryers feature an “exclusive, all stainless-steel drum that provides lasting durability,” this, said the court, hardly qualified as a material misrepresentation.  And Murray’s account of his personal experience at a single Sears store did not suggest that Sears made any representation about the Kenmore-brand dryers on a class-wide basis. Nor did it suggest that Sears ever made such a representation about the Frigidaire-brand dryers nor that Electrolux ever made similar  representations about either brand of dryers. If anything, his individual isolated (and uncorroborated) incident of allegedly deceptive marketing suggests that Murray’s claims, were highly “idiosyncratic” and, thus, not amenable to class-wide proof.  In addition, Murray’s failure to identify any other class  member whose clothes were stained by rust only reaffirmed that his claimed injury here was unique. He also had not offered any evidence to suggest that other California consumers’ clothes were ever damaged by Kenmore or Frigidaire dryers. 

Accordingly, because he had not identified any common questions of fact or law that pertain to every class member, Murray failed to meet the commonality prerequisite.

Rule 23(a)(3) requires that the claims or defenses of the representative parties be typical of the claims or defenses of the class. Murray failed to satisfy the typicality requirement here for the same reasons he failed to satisfy the commonality requirement: specifically, he had not presented evidence of any class-wide misrepresentations or class-wide injury. As explained above, the only evidence here that defendants ever specifically represented that their dryers’ stainless steel drums protect clothes from rust stains came from Murray’s own isolated experience at one Sears store. Murray did not present any evidence to suggest that either defendant ever made the same
representations to other California consumers. Nor did he present any evidence to suggest that other California consumers suffered the same problems,

Also, he testified that the loose drum was most likely what caused his clothes to become exposed to the rust in the first place because the rust had only developed on the exterior portion of the drum front -- a part of the dryer that would not normally come into contact with any clothes. This admission -- that other problems with Murray’s dryer may have contributed to the rust stains he experienced -- left the named plaintiff vulnerable to fact-based defenses that could not be raised against other class members.  Similarly, because Murray purchased his dryer in September 2001, and did not file until November 2009, the potential statute of limitations issue made his claim not typical (as well as affecting adequacy). 

State Mass Tort Court Rejects General Causation Experts

A Pennsylvania state court excluded plaintiffs' expert testimony offered in coordinated cases alleging a denture adhesive caused personal injuries.  See  In re: Denture Adhesive Cream Litigation, No. 090604534 (Phila, Ct. Common Pleas)(J.New).

In 2009 the court had created the mass tort docket for these product cases. Defendants include manufacturers and retailers. Defendants moved to exclude under the Frye test the plaintiffs' four main general causation experts, who opined that the product's zinc conduct led to neurological complications; the court heard live testimony and oral argument. 

The court had considered some of the issues before, excluding the general causation opinions because they were based on inadequate data, including with regard to how much zinc is absorbed in the body.  Plaintiffs then submitted supplemental information which they alleged filled in the various analytical gaps. One item involved a publish Scottish study of 22 patients to which one of the experts applied a further analysis he termed a "cohort study", and another was a study by one of the experts of 24 subjects using denture products over a 30 day period.

The court concluded that the opinions involved "novel" science because the alleged link between zinc and neuropathy is reported in literature only in the past few years.  In analyzing the new data, the court stressed that the issue was not just the alleged link between zinc exposures and neuropathy, but the ability of a specific product to cause specific injuries. Not all zinc-containing dental creams are equal, said the court.

 The so-called cohort study did not describe the actual exposure dose of each subject. It didn't describe the type of adhesive used, the frequency it was used, or the duration between use and symptoms. Thus it is based on a method that is not generally accepted. Furthermore, it was not published and subject to peer review.

The experts alleged that zinc in the denture adhesive had blocked the users' bodies from being able to absorb copper, causing copper deficiency myeloneuropathy.  The second study, at best, linked product use to a short-term reduction in copper.  It did not say anything about severe copper deficiency or allegedly resultant neurological symptoms.  The court found it to be a "blatant, litigation driven attempt to remediate" the deficiencies in the prior expert testimony.

In sum, even with the "new" data, plaintiffs had failed to provide a sound and generally accepted methodology linking the product to the alleged injury.  Expert opinions excluded.

Ninth Circuit to Rehear CAFA Mass Action Removal

The Ninth Circuit en banc has agreed to rehear a panel's split decision on mass action removal under the Class Action Fairness Act that created a circuit split on the removal issue.  See Romo v. Teva Pharm. USA Inc. (9th Cir., en banc, 2/10/14).

This case presents the issue of whether removal was proper under the “mass action” provision of CAFA when plaintiffs moved for coordination pursuant to California Code of Civil Procedure section 404. CAFA authorizes federal removal for mass actions when “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve
common questions of law or fact. . . .” 28 U.S.C. § 1332(d)(11)(B)(i). The panel originally concluded that this CAFA jurisdictional requirement was not met under the totality of the circumstances in this case, and affirmed the district court’s remand order.

More than forty actions have been filed in California state courts regarding products containing
propoxyphene. Some of the parties filed a petition asking the California Judicial Council to establish a coordinated proceeding for all California propoxyphene actions pursuant to California Code of Civil Procedure section 404. The defendant then removed the cases. The district court found that there was no federal jurisdiction under CAFA because plaintiffs’ petition for coordination did not constitute an explicit proposal to try the cases jointly, and remanded the case back to state court. The appeals court panel agreed, rejecting defendant's argument which emphasized that plaintiffs had sought coordination to avoid “inconsistent judgments,”and “conflicting determinations of liability” -- which certainly sound like trial issues.

The decision created a split with cases like  In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012).

En banc oral argument is set for the week of June 16, 2014.


 

Ascertainability Issues Doom Class

The federal court in Maryland recently rejected a proposed class action under the Telephone Consumer Protection Act, raising the important issue of ascertainability. See Brey Corp. v. LQ Mgmt. LLC, (D. Md., 1/30/14).

The implicit requirement of ascertainability is an important but sometimes overlooked prerequisite to class certification. A plaintiff must offer a definition of a class that is precise, objective and presently ascertainable. A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable.The courts have observed that the ascertainability requirement serves several important objectives. First, it eliminates serious administrative burdens that are incongruous with the efficiencies expected in a class action by insisting on the easy identification of class members. Second, it protects absent class members by facilitating the best notice practicable under Rule 23(c)(2) in a Rule 23(b)(3) action. Third, it protects defendants by ensuring that those persons who will be bound by the final judgment are clearly identifiable. If a class cannot be ascertained in an economical and administratively feasible manner, any significant benefits of a class action are lost.

Here, the court focused on the notice rationale.  The general proposition is of course that a class should be certified before class notices are sent. See generally Carrera v. Bayer Corp., 727 F.3d 300 (3rd Cir. 2013). But here, it was already clear that the court could not figure out who to send notice to.  First, the members of the putative class complaining about the junk faxes would have standing to assert a claim against defendant only if they received an unsolicited fax. There were no objective criteria that establish that a putative class member in fact obtained an unsolicited fax. A putative class member would be able to establish his, her, or its standing only by submitting an affidavit that he, she, or it had received the unsolicited fax. A sort of self defining, impossible to verify, class. In order for a plaintiff to recover, he or she must prove to the satisfaction of the fact-finder, after being cross-examined, that she, he, or it is entitled to the relief sought. And that would clearly involve, here, multiple individual issues and mini-trials.   

Second, said the court, the unsolicited faxes in question were sent some 6 or 7 years ago. Therefore, the dim recollection of a putative class member that he, she, or it had received a particular unsolicited fax would be involved, and obviously somewhat suspect.

Finally, the court observed that the provenance of this litigation was "somewhat suspect." Plaintiff’s counsel entered into a retainer agreement with plaintiff not because plaintiff was aggrieved by an unsolicited fax that it received. Instead, the retainer agreement provided that plaintiff was to send to plaintiff’s counsel any unsolicited fax it received so that plaintiff’s counsel could determine whether a violation of the Telephone Consumer Protection Act had occurred.

Class certification denied.  

 

 

 

 

 

 

Class Certification Denied in Dog Treat Case

 A federal court recently denied certification to a proposed nationwide class in a suit alleging defective dog treats. See Holt, et al. v. Globalinx Pet LLC, et al. (C.D. Cal., 1/30/14).  Differences in applicable state laws was a central factor.

The named class plaintiff, a resident of Texas, sued Globalinx Pet alleging her dog was injured by ingesting dog treats containing chicken jerky produced in China. Specifically, plaintiff began feeding the chicken jerky dog treats to her dog, Tucker, one to three times a week  in 2011-12. Tucker was a small mixed breed dog and about 8 years old at the time. (Although there is plenty of data about the number and distribution of purebred dogs in North America, such robust data is not really available for mixed breed dogs. The estimates are that "mutts" make up 53% of the dogs in the United States.)  Tucker fell ill, and after blood tests was reported to be in “acute kidney failure,” which resulted in Tucker being put down.

Plaintiff alleged that the dog treats’ packaging claimed that the food was “made from ‘100% Natural
Ingredients’ [salt, vegetable glycerin, and chicken] that were ‘delicious’ and had a ‘taste dogs
love.’ . . . [and were] ‘wholesome and nutritious.’”  Plaintiff concluded that these statements represented that the jerky dog treats were “safe” and “enjoyable” for dogs to eat.  However, plaintiff alleged that in past years, the FDA has warned about dog treats containing chicken jerky from China. Furthermore, news reports from around the world had allegedly discussed the alleged dangers of Chinese chicken jerky dog food products. Defendants’ pet food packaging did not warn consumers about the information from the FDA, claimed the plaintiff. 

Plaintiff filed her amended complaint  alleging eight causes of action for (1) Violation of implied warranties; (2) Violation of express warranties; (3) Common law fraud; (4) Unjust Enrichment; (5) Negligence; (6) Strict products liability (defect); (7) Strict products liability (failure to warn); and (8) Violation of the state Deceptive Trade Practices—Consumer Protection Act.  And then a series of proposed classes defined similarly as all persons in the United States (except Louisiana and Puerto Rico) who purchased any dog treat product containing chicken jerky manufactured or sold by defendants and containing chicken imported from China.

The court noted that a party seeking class certification must affirmatively demonstrate compliance
with Rule 23—that is, the party must be prepared to prove that there are in fact sufficiently
numerous parties and common questions of law or fact. Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2550 (2011). This requires a district court to conduct a “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Id.

In order for a class action to be certified under Rule 23(b)(3), the class representatives must show “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”  The predominance inquiry tests whether proposed class actions are sufficiently cohesive to warrant adjudication by representation, and when the causes of action in a complaint are based on state statute or common law, material differences in state law across the jurisdictions covered by the class may compound the disparities among class members from different states and reveal that a proposed class fails to satisfy the predominance requirement.  See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189, amended by 273 F.3d 1266 (9th Cir. 2001). The Ninth Circuit has held that a nationwide class should not be certified if materially different consumer protection laws would require different state laws to govern different class plaintiffs, based on a conflict of law analysis using the facts and circumstances of each specific case. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 590, 594 (9th Cir. 2012).

Here, while the plaintiff maintained that the laws of California should apply to the proposed nationwide classes, defendants cataloged a series of material differences between the consumer protection laws of several states and those of California.  By the time of certification, the court had already performed a case-specific conflict of law analysis and determined that Texas law would govern four of the named plaintiff’s causes of action. In addition, defendants outlined a number of ways in which California’s consumer protection laws differed from those of other states, based on plaintiff’s claims in this particular case. For example, at least three states have passed comprehensive product liability statutes that preempt common law causes of action based on
harms caused by a product, which would certainly materially affect the warranty and strict product liability claims of potential class plaintiffs in those states.

Because of the material differences between the laws of California and the laws of other states, and the holding that the named plaintiff herself would be subject to different laws than a California plaintiff, the court concluded that the alleged common questions did not predominate over questions affecting individual class members. Nor could the court consider the plaintiff’s proposed nationwide classes a superior method for the fair and efficient adjudication of the present controversy. See Zinser, 253 F.3d at 1192 (“We have previously held that when
the complexities of class action treatment outweigh the benefits of considering common issues
in one trial, class action treatment is not the superior method of adjudication.”) 

Class certification denied.